in the united states district court...

IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Darren Lubbe,

Plaintiff,

v.

Mark Milanovich, Christopher Mulch, Christopher Brock, Brian Perry, Brandon Negri, Jeoff Williams, RhondaFleming, Thomas G. Ruocco, Steven C. McGraw, Manny Flores, A. Cynthia Leon, Jason K. Pulliam, Randy Watson, Steven P. Mach, J. Pete Blair, John Curnutt, Russ Claggett, Marty Adcock, and Armando Ramirez,

Defendants

Case No. 18-cv-1011

ORIGINAL COMPLAINT

NOW COMES Darren A. Lubbe, the Plaintiff herein, alleging and stating as follows:

Introduction

1. Under Director Steven McCraw, a “good old boy” culture of cronyism and outright

corruption has flourished at the Texas Department of Public Safety (“DPS”). On one hand,

policy violations and even crimes have been covered up by DPS when senior commanders or

favored personnel (usually Texas Rangers) were involved. On the other hand, senior

commanders have forged documents and created rules after the fact in order to punish lower-

ranking or disfavored personnel.

2. The Plaintiff finds himself in the latter category. He was a highly decorated

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Case 1:18-cv-01011 Document 1 Filed 11/27/18 of 24

investigator for the Texas Department of Public Safety (“DPS”) in 2014 when his captain began

pressuring him to attend the captain's “cowboy church.” Whereas many of the Plaintiff's

colleagues in Mt. Pleasant submitted to the captain's wishes and attended the “cowboy church,”

the Plaintiff refused, and that triggered an ongoing campaign of harassment from the captain and

his cronies. In 2016, the plaintiff filed a complaint with the Equal Employment Opportunity

Office (“EEO”) at DPS headquarters in Austin, but that only made things worse. The captain

found out about the EEO complaint, and a few months later the Plaintiff received the first

negative performance evaluation of his entire career. The Plaintiff was harassed into an early

retirement in late 2017, but according to emails obtained by the Plaintiff, senior DPS personnel

continued to retaliate after his retirement by persuading officials at Texas State University to fire

the Plaintiff from a teaching job. Conversely, the captain was allowed to retire quietly even after

DPS investigators confirmed that he had (1) violated the religious freedoms of the Plaintiff and

(2) stolen state property.

3. The Plaintiff did not particularly want to air DPS's “dirty laundry,” but enough is

enough. The Defendants were sworn to uphold the law, and they thumbed their noses at it. Now

it's time to hold them accountable.

JURISDICTION AND VENUE

4. This Court has jurisdiction under 28 U.S.C. § 1331 because the Plaintiff asserts

federal claims under 42 U.S.C. § 1983.

5. Venue is proper in this Court because some of the Defendants reside in Travis County,

Texas.

PARTIES

6. Plaintiff Darren Lubbe is a retired special agent with the Criminal Investigation

Division (“CID”) of the Texas Department of Public Safety (“DPS”).

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7. Defendant Mark Milanovich is a retired CID captain who was stationed in Mount

Pleasant, Texas. He was a supervisor in the Plaintiff's chain of command.

8. Defendant Christopher Mulch is a CID lieutenant stationed in Mount Pleasant, Texas.

9. Defendant Christopher Brock is a CID special agent stationed in Mount Pleasant,

Texas.

10. Defendant Brian Perry is a CID special agent stationed in Mount Pleasant, Texas.

11. Defendant Brandon Negri is a lieutenant in the DPS Office of Inspector General in

Garland, Texas.

12. Defendant Jeoff Williams is a major and the director of DPS Region 1 in Garland,

Texas

13. Defendant Rhonda Fleming is the DPS Inspector General in Austin, Texas.

14. Defendant Thomas G. Ruocco, is the chief of the CID division Austin HQ, Texas.

15. Defendant Steven C. McCraw is the director of DPS in Austin, Texas.

16. Defendant Manny Flores is a member of the Texas Public Safety Commission, which

oversees DPS.

17. Defendant A. Cynthia Leon is a member of the Texas Public Safety Commission.

18. Defendant Jason K. Pulliam is a member of the Texas Public Safety Commission.

19. Defendant Randy Watson is a member of the Texas Public Safety Commission.

20. Defendant Steven P. Mach is the chairman of the Texas Public Safety Commission.

21. Defendant J. Pete Blair is the executive director of the Advanced Law Enforcement

Rapid Response Training (“ALERRT”) at Texas State University in San Marcos, Texas.

22. Defendant John Curnutt is the assistant director of ALERRT.

23. Defendant Russ Claggett is a senior regional manager for ALERRT.

24. Defendant Marty Adcock is a regional manager for ALERRT.

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25. Defendant Armando Ramirez is a regional manager for ALERRT.

FACTS

26. The Plaintiff worked as a CID special agent in Mt. Pleasant, Texas and received

numerous awards from DPS and other agencies for his service. While he was working in Mt.

Pleasant, his captain (Defendant Milanovich) and lieutenant (Defendant Mulch) repeatedly

suggested that there was some impropriety or immorality in the Plaintiff's relationship with his

wife. In 2014, Captain Milanovich began criticizing the Plaintiff's religious devotion and

pressuring the Plaintiff to attend the captain's church. Later in 2014, Captain Milanovich stood in

the doorway to the Plaintiff's office and invited him to attend his church, making a comment that

the Plaintiff would have to attend his church to be “accepted.” The Plaintiff responded by asking

Captain Milanovich, “So does that mean that the only way I can be accepted is by going to your

church?” The captain replied, “Yes, you need to come to my church,” and the captain seemed

aggravated and agitated by the Plaintiff's question. This was ironic, because Captain Milanovich

behaved like a foul-mouthed heathen during the week, yet he wanted everyone he worked with to

know that he considered himself a devout Christian.

27. In the years that followed, Captain Milanovich imposed double standards on the

Plaintiff, e.g., ordering the Plaintiff to shave his beard even though other undercover agents like

the Plaintiff were permitted to wear beards. In fact, the Plaintiff was the only agent in

Milanovich's district ever told to shave his beard. The captain constantly harassed and

threatened the Plaintiff about his service on the DPS Special Response Team, so much so that the

Plaintiff ultimately was told by Captain Milanovich to quit the team. The captain also subjected

the Plaintiff to baseless and retaliatory disciplinary write-ups, bullying, intimidation, and

religious harassment.

28. Some time prior to October 6, 2016, the Plaintiff sought and obtained permission

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from his chain of command to replace the tires on his state vehicle. On October 6, 2016, the

Plaintiff returned a tractor and farm truck that he had borrowed from Agent Chris Brock, and

while returning the truck, trailer and tractor, the right rear tire on Agent Brock’s farm truck blew

out. The Plaintiff knew that Discount Tire did not resell the tires and that the tires would be

shredded. He also knew that no money was exchanged for the used tires nor was there any DPS

policy regarding disposal of the used tires. On October 7, 2016, the Plaintiff mentioned to Lt.

Mulch that he blew a tire on Agent Brock's personal truck, and that he planned to let Agent

Brock use the old tires from his state vehicle since those tires needed to be replaced before an

upcoming trip to the Mexican border. Lt. Mulch did not object. Later that day, the Plaintiff

replaced the tires on his state vehicle and told Agent Brock that he could pick up the old tires at

Discount Tire in Mount Pleasant, Texas.

29. On October 10, 2016, the Plaintiff visited Captain Milanovich in the captain's office.

The Plaintiff and Milanovich were the only DPS/CID personnel present due to the Columbus

Day holiday, and the Plaintiff noticed that two of the four chairs were missing. The chairs were

worth about $600 each. The Plaintiff asked the captain what happened to the chairs, and the

captain appeared nervous before admitting, “I took them home.” “Fuck the state,” he said, “I'm

getting mine.” Milanovich then made retaliatory threats against a fellow agent in the Texarkana

office. He also told the Plaintiff that he knew how the Plaintiff and the Plaintiff’s wife met

(insinuating an extramarital affair) and began telling the Plaintiff to start a new life and submit to

the Lord. Captain Milanovich, who was the senior CID captain in the state, said he was angry

because he had been passed over for promotion to major. The Plaintiff put the receipt for the

purchase of truck tires on his administrative assistant’s desk.

30. On October 12, 2016, Agent Brock had the Plaintiff's old work tires installed on his

personal farm vehicle.

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31. After his conversation with the Plaintiff on October 10, 2018, Captain Milanovich

became concerned that the Plaintiff might report him for stealing state property. In an attempt to

gain leverage over the Plaintiff, Captain Milanovich confronted him on October 13, 2016 about

the price of the new tires and the captain asked the Plaintiff what happened to the old tires. The

Plaintiff told Captain Milanovich that Agent Brock now had the old tires, and that Discount Tire

wrote on the receipt “save old tires for customer”. The Plaintiff had nothing to hide and knew

that he had not violated any law or department policy. The captain nonetheless ordered the

Plaintiff to make sure the used tires were returned to Discount Tire. Within an hour, the Plaintiff

texted and placed a phone call to Agent Brock telling him to return the tires immediately per the

captain's orders. The captain's office door was open and the Plaintiff spoke loud enough for the

captain to hear the conversation.

32. Later that day, Agent Brock called the Plaintiff, who was headed out of town for a

work assignment on the Mexican border. Brock said he was not going to return the old DPS

tires, but was planning to return some old tires that Brock had in his barn, and that he intended to

keep the old used tires that had been on the Plaintiff's work vehicle. Agent Brock said he had

some other old DPS tires in the barn, and knew that other DPS troopers kept old tires and put

them on a personal trailer with permission from their sergeant. The Plaintiff repeatedly told

Agent Brock not to lie, and to do what the captain said. The Plaintiff knew that Agent Brock had

a documented history of lying and trying to cover things up.

33. On October 14, 2016, after repeated calls and directives from Captain Milanovich,

Agent Brock returned the correct tires to Discount Tire. Later that same day, Lt. Mulch called

the Plaintiff, who was traveling to the Texas/Mexico Border, and asked the Plaintiff to write a

statement about the tires and email it to him by the following Monday, which was October 17,

2016. Lieutenant Mulch also told Agent Brock to do the same. On October 20, 2016, the

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Plaintiff was ordered to return early from his assignment on the border.

34. On October 21, 2016, the Plaintiff met with Captain Milanovich, Lt. Mulch, and

Agent Brock for an administrative inquiry. According to a recording of that meeting, Captain

Milanovich suggested that the Plaintiff was not a good enough Christian, that he needed to “get

his heart right with God,” and that he needed to go the captain's church. Lt. Mulch never

mentioned the fact that the Plaintiff informed him about his plans to give the old tires to Agent

Brock, and that Lt. Mulch had never objected. The Plaintiff noticed that Captain Milanovich had

returned the stolen chairs before the administrative inquiry, apparently because he recognized his

own hypocrisy. Captain Milanovich told Agent Brock and the Plaintiff that he believed that

there was no criminal act and that it just looked like bad judgment call and that Milanovich

would talk to Major Jeoff Williams about it.

35. On the morning of Monday, October 24, 2016, the Plaintiff met with Lt. Mulch in his

office about the bullying, unprofessional conduct, and theft of state property by Captain

Milanovich. The Plaintiff also told Lt. Mulch about the years of religious harassment by Captain

Milanovich. After the Plaintiff made the complaint to Lt. Mulch (which DPS policy required Lt.

Mulch to report to headquarters), Lt. Mulch asked the Plaintiff, “Are you ready for the battle?”

He then attempted to discourage the Plaintiff by saying, “I'm not your salvation.” Lt. Mulch

appeared to be frightened that the Plaintiff might report Captain Milanovich to higher authorities.

36. On November 2, 2016, Lt. Mulch, Agent Brock, and the Plaintiff met in Agent

Brock's office. Lt. Mulch told them that a decision should be coming down from the major that

day. After Mulch left, Agent Brock started telling the Plaintiff about all of the double standards

and religious hypocrisy by Captain Milanovich. Agent Brock told the Plaintiff that Captain

Milanovich kept DPS all-terrain vehicles and a trailer at his house and farm for personal use (in

violation of DPS policy). Brock also told the Plaintiff that Milanovich had criticized Brock

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about not going to his (Milanovich’s) church and that Brock needed to get his heart right with

God. Brock stated to the Plaintiff that he was tired of the religious bullying that had been taking

place for the last few years.

37. On Wednesday evening, November 2, 2016, Captain Milanovich called the Plaintiff,

who was getting ready for another special operations border mission. Captain Milanovich told

the Plaintiff that he was not getting a C-1 (formal complaint), but was getting a regional written

reprimand and maybe an unscheduled evaluation and that the Plaintiff needed to resign from the

Special Response Team (a collateral duty). The Captain told the Plaintiff to go ahead and go to

the border and to tell the Texas Ranger Special Operations Group that this was the Plaintiff’s last

mission and that the Plaintiff would be resigning. This devastated the Plaintiff, who had

developed considerable expertise in special operations and regularly taught classes on the

subject.

38. On Thursday, November 3rd, 2016, the Plaintiff traveled to the border for his last

mission with the Texas Rangers. Lt. Mulch called the Plaintiff and asked what the Plaintiff’s

plans were in reference to the outcry that the Plaintiff made to Lt. Mulch about Milanovich, and

Lt. Mulch asked if the Plaintiff was going to file a complaint. The Plaintiff was fearful that Lt.

Mulch would warn Captain Milanvoich, so he told Lt. Mulch that he was not going to complain.

39. On November 14, 2016, the Plaintiff filed a complaint against Captain Milanovich

with DPS's Equal Employment Opportunity (“EEO”) office. Afterward, Lt. Mulch called the

Plaintiff and said he heard that the Plaintiff had filed an EEO complaint, and he seemed upset

with the Plaintiff. The Plaintiff does not know how Lt. Mulch learned about the complaint, which

was supposed to be confidential at that point. The only plausible explanation is that someone

inside the Office of Inspector General notified the Plaintiff's chain of command. The Plaintiff

told Lt. Mulch that he had to stand up for what was right. Lt. Mulch told the Plaintiff, “That’s

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why they call it a hard right and easy left,” i.e., Mulch suggested that the Plaintiff would regret

filing the complaint.

40. The Plaintiff was interviewed by DPS Office of Inspector General (“OIG”)

Lieutenant Patrick Heintz on December 22, 2016. The following February, Lt. Mulch told the

Plaintiff, “I hope you're right about this, because if you're not, well.... we will just get along.”

About a month later, Lt. Mulch told the Plaintiff, “The guys don't trust you,” and “I don't know if

we can ever get past this.”

41. On March 24, 2017, Lt. Mulch said he was under investigation for failing to report

the Plaintiff's religious harassment complaint. Lt. Mulch again told the Plaintiff, “I don't know

how we can ever get past this.” Lt. Mulch told the Plaintiff for the third time that it looked like

the Plaintiff was retaliating against Captain Milanovich, and that he (i.e., Lt. Mulch) and the

captain had since become friends. Prior to that time, Captain Milanovich and Lt. Mulch did not

get along with one another. Lt. Mulch and Agent Brock then drove off together.

42. In April of 2017, for the first time in his career, the Plaintiff' received a negative

annual performance evaluation. Lt. Mulch told the Plaintiff again that “the guys” did not trust

him and that they thought the Plaintiff was “the enemy.” At that point, the Plaintiff was the most

senior agent in the office, had been stationed in Mt. Pleasant since 2004, was highly decorated by

DPS, had no previous negative evaluations or written reprimands, was an accomplished

investigator, was the 1C District and Statewide Department tactics and medical instructor, and

maintained a case load and statistics comparable to the other agents in Mt. Pleasant even though

he was absent from the office during approximately 50% of his work hours due to his collateral

job duties. Major Jeoff Williams, Captain Milanovich, and Lt. Mulch falsified the Plaintiff’s

annual evaluation in an attempt to retaliate against him for filing the EEO complaint. The

Plaintiff was immediately cut from all of the collateral and voluntary duties listed above, as well

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as surveillance duties and assisting other agents in criminal investigations, training, and

enforcement action. As a result, the Plaintiff's overtime pay was eliminated. The Plaintiff was

essentially assigned to “desk duty,” and he knew that his chain of command was trying to set him

up for termination.

43. On June 8, 2017, the Plaintiff was interviewed by Lt. Brandon Negri of OIG. During

that interview, the Plaintiff was shown a copy of a statement wherein Agent Brock claimed that

the Plaintiff tried to convince him to keep the old tires from the Plaintiff's state vehicle and

instead return some older tires. In other words, Agent Brock lied and tried to blame the Plaintiff

for his own scheme to keep the tires from the Plaintiff's vehicle. At one point, Lt. Negri tried to

intimidate the Plaintiff by claiming that the Plaintiff attempted to defraud the state.

44. Lt. Negri expressed little interest in the fact that the Plaintiff had proof of the

ongoing religious harassment in Mt. Pleasant. Instead, he was more concerned that the Plaintiff

had used an audio recorder to get that proof. “Even though it is not a crime or violation of policy

to record your supervisors, I was ordered by headquarters to tell you to stop recording them,” Lt.

Negri said. “I was told to tell you about the honor code.” In other words, DPS commanders didn't

mind the Plaintiff recording criminal suspects in the field, but it was a violation of the “honor

code” to record criminal suspects who carried a DPS badge.

45. Lt. Negri's statements were the first confirmation that the OIG investigation had been

compromised by Director McCraw, Chief Ruocco, and Major Williams. Whereas the inspector

general and her inferior officers are supposed to operate outside the DPS chain of command and

report directly to the DPS commission, Lt. Negri was nonetheless relaying orders from DPS

“headquarters.” The Plaintiff asked Lt. Negri to report how the Defendants and the EEO process

had mistreated him, but instead Lt. Negri buried the complaint. He never even wrote a report

about his interview of the Plaintiff.

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46. On June 22, 2017, while driving his official vehicle, the Plaintiff witnessed a man

running out of the woods with what appeared to be an assault rifle, then the man jumped into the

passenger side of a waiting vehicle parked on the westbound shoulder of Interstate 30. The

Plaintiff’s official vehicle was equipped with emergency lights and siren. Believing the subject

may have committed or was likely to commit a felony, the Plaintiff called dispatch for assistance

and location of travel. With no back up close by, the Plaintiff followed the vehicle into a dead

end trailer park and initiated a felony traffic stop. The Plaintiff activated the red and blue front

and rear emergency lights, called in the location and was visually identified by front and rear

“state police” markings and body armor. It was later determined the rifle was a pellet gun, and

the Plaintiff released the driver and passengers with no further action. The Plaintiff reported the

incident to Lt. Mulch the following day, June 23rd, 2017.

47. On July 17, 2017, Lt. Mulch told the Plaintiff, “I am mad at you, but I can't discuss it

because of the ongoing administrative investigation.” He added, “One day, we will have a couple

of beers and talk about it.” On the same day, Lt. Mulch gave the Plaintiff a written disciplinary

write-up (an “HR-31”) for the traffic stop described above stating that the Plaintiff had violated

the law and DPS policy. In reality, the Plaintiff had not violated any laws or DPS policies, and

Lt. Mulch did not criticize the traffic stop at the time the Plaintiff reported it. The Plaintiff later

found out that Major Williams, Captain Milanovich, and Lt. Mulch had asked OIG to initiate a

C-1 investigation (i.e., an employee misconduct investigation) of the above incident. OIG

returned the complaint to Major Williams, however, explaining that no law or policy had been

violated and OIG was not going to get involved. Again, the Plaintiff was ordered to shave,

change his daily dress to business casual, and report daily via email to Lt. Mulch, and he was

informally punished and shunned. He was also ordered to take remedial classes designed for

problematic employees, and he was directed to complete the classes within one year.

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48. The Plaintiff is aware of similar circumstances wherein CID agents initiated felony

traffic stops in plain clothes, but none of those agents were reprimanded or punished. In 2016,

for example, CID Special Agents Danny Kelly and Josh Vera were returning to their Mt.

Pleasant duty station when they noticed that they were being followed by a possible outlaw biker

group. Agent Kelly and Vera followed the bikers to their residence and confronted them at

gunpoint while Agent Kelly asked them, “You want some of this?” Agents Kelly and Vera were

not identified by police markings or emergency red lights on their state vehicle. The bikers were

not cited or arrested, and Lt. Mulch and Captain Milanovich did not reprimand Agents Kelly and

Vera.

49. On July 21, 2017, Lt. Mulch approached the Plaintiff in his office and said he was

going to discuss the Plaintiff's disciplinary write-up (for the aforementioned traffic stop) at an

area meeting of CID agents. The Plaintiff responded that Lt. Mulch should not do that, as it

would be further retaliation. The Plaintiff also learned that Agent Brock told another state

trooper about the disciplinary write-up, even though the other trooper had no reason to know

about it. Agent Brock did this in order to humiliate the Plaintiff and to further the other

Defendants' retaliation against the Plaintiff.

50. On August 1, 2017, the Plaintiff received a second HR-31 regarding the July 21,

2017 traffic stop even though he had already received an HR-31 regarding the incident. Lt.

Mulch said the purpose of the second HR-31 was to “document progress.” The Plaintiff,

however, researched DPS policy and learned that if a DPS Employee receives three HR-31’s in a

one-year span, he or she can be designated for an unscheduled evaluation. In other words, the

DPS chain of command was building the pathway for his termination. The second HR-31 also

reprimanded the Plaintiff for failing to complete the remedial classes designated in the first HR-

31, even though only eleven days had passed since the first HR-31 and the Plaintiff had been

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given one year to complete the classes.

51. Prior to the August 1, 2017 counseling session, Lt. Mulch asked the Plaintiff how his

wife was doing and where was she. The Plaintiff told Lt. Mulch, “She is down in Corpus Christi

at a geology camp.” Lt. Mulch stated; “Oh, that’s right, I saw on her Facebook post. Glad she is

where she said she is.” Lt. Mulch said this to make the Plaintiff lose his composure, i.e., by

suggesting that the Plaintiff's wife was unfaithful and dishonest.

52. On August 10, 2017, the Plaintiff met with Major Williams to report retaliation by

the Plaintiff's supervisors. Major Williams told the Plaintiff that it appeared as if the Plaintiff

was the one who was retaliating against Captain Milanovich. Major Williams asked the Plaintiff

when he was eligible for retirement, and the Plaintiff told him two years. Major Williams told the

Plaintiff it would be a “long two years.” Major Williams said the Plaintiff no longer had

credibility among the people he worked with, and he should consider changing duty stations, i.e.,

he should transfer out of Major Williams's region. The Plaintiff told Major Williams that he

could not move because his family could not move. Major Williams told the Plaintiff, “You

don't want people following you around,” which the Plaintiff understood to be a threat.

53. Toward the end of the August 10, 2017 meeting, Major Williams handed the Plaintiff

written notice from Chief Ruocco that he was being suspended for five days without pay and

placed on probation for six months as punishment for the used tire incident. Recall that Captain

Milanovich had originally told the Plaintiff that the tire incident was minor and would not result

in formal discipline. Thus the Defendants waited until a few months after the Plaintiff filed an

EEO complaint – and more than a year after the incident happened – to punish the Defendant for

something that they originally acknowledged was not a violation of law or policy. Agent Brock,

meanwhile, received only a one-day suspension and six months of probation even after he was

caught lying about what happened.

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54. On August 11, 2017, the Plaintiff filed a retaliation complaint against DPS with the

U.S. Equal Employment Opportunity Commission (“EEOC”) in Dallas.

55. On August 22, 2017, the Plaintiff voluntarily took a polygraph test to evaluate

whether he was telling the truth regarding the two affidavits and EEO complaints that the

Plaintiff filed. (The Plaintiff had repeatedly asked DPS to administer a polygraph, but it never

responded to his requests). On that same date, EEOC notified DPS about the Plaintiff's religious

discrimination complaint. The polygraph examiner found that the Plaintiff had been truthful, and

those findings were transmitted to OIG/DPS on the same day. Shortly thereafter, the Plaintiff

received a letter dated July 27, 2017 from Chief Ruocco indicating that the Plaintiff's allegations

against Captain Milanovich (i.e., that he stole state property and engaged in religious

discrimination) had been sustained and that the captain would be punished appropriately.

Although the letter was dated July 27, 2017, it was postmarked August 25, 2017. Chief Ruocco

backdated the letter in response to the EEOC complaint and the polygraph results, namely to

make it appear that DPS commanders had already decided to punish Captain Milanovich prior to

the EEOC complaint. In reality, Chief Ruocco and Inspector General Rhonda Fleming were

planning to cover up Milanovich's misconduct, but they were forced to change their plans when

the Plaintiff filed his federal complaint.

56. On August 30, 2017, the Plaintiff met with Chief Ruocco to appeal his punishment.

During that meeting, the Plaintiff provided Chief Ruocco with evidence proving that Captain

Milanovich, Lt. Mulch, and Agent Brock lied and falsified government documents. Chief

Ruooco responded that their answers were “vague,” but he expressed no interest in whether they

had violated the law or DPS policy. The Plaintiff's appeal was overruled. On September 11,

2017, the Plaintiff sent an email to Director McCraw asking for a final appeal to the director, and

that request was approved.

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57. On September 12, 2017, the Plaintiff submitted an open records request to support

his appeal. In response to that request, DPS produced some emails, but it failed to produce the

June 8, 2017 interview of the Plaintiff by OIG Lt. Brandon Negri. DPS claimed that the CID

chain of command never got a report from Lt. Negri, even though Lt. Negri had documented

proof (i.e., audio recordings and corroborating witness statements) of religious harassment. As

noted above, Lt. Negri was supposed to conduct an independent investigation, but instead he

conducted a sham investigation and was nothing more than a tool for senior DPS commanders.

58. Under the leadership of Defendant Fleming, the entire Office of Inspector General

has become the “Office of Damage Control.” Rather than preserve the independence of her

office, she allows it to operate as an arm of Director McCraw and his senior staff, mainly for the

purpose of protecting Director McCraw, his senior staff, and their cronies from embarrasment or

unwanted scrutiny. Defendant Fleming knew that her office was conducting sham investigations,

including the sham investigation of the Plaintiff's EEO complaint, and she tried to cover up

Captain Milanovich's misconduct at the expense of the Plaintiff. She had no interest in

preventing retaliation against the Plaintiff, and her office confirmed Captain Milanovich's

misconduct (as reflected in Chief Ruocco's backdated letter) only after the Plaintiff took his

complaint to federal officials.

59. On September 28, 2017, the Plaintiff and his attorney, Pete Schulte, met at DPS

headquarters in Austin with Director McCraw and DPS attorneys. Director McCraw agreed that

the Plaintiff's punishment was too harsh and said he did not believe that the incident

compromised the Plaintiff's integrity in any way as a CID special agent. The director further told

the Plaintiff that he was “going to find out what the hell is going on in Mt. Pleasant,” and he

asked to keep the notebook that the Plaintiff prepared. A few days later, the Plaintiff was

contacted by Lt. Mulch to come to the DPS Mt. Pleasant office, where Captain Milanovich and

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Lt. Mulch gave him a letter from Director McGraw. In the letter, the director reduced the

Plaintiff’s punishment from 5 days off and 6 months probation to one (1) day off and no

probation. While this was an improvement, the complaint should have been dismissed outright

insofar as the Plaintiff never violated any law or DPS policy.

60. Notwithstanding the polygraph results, on November 3, 2017 the DPS chain of

command ordered the Plaintiff transferred outside of Region 1. The Plaintiff could not relocate

his family and incur the additional cost of two residences, and he feared that senior DPS

personnel would retaliate further in a different region, so he was forced to retire effective January

31, 2018 (his last work day was December 22, 2017 because of accrued leave time).

61. As a result of his impending retirement, the Plaintiff sought to take on more teaching

responsibilities at Texas State University, where he worked as an adjunct instructor in the

Advanced Law Enforcement Rapid Response Training (“ALERRT”) program. On November 30,

2017, the Plaintiff was terminated from ALERRT without warning.

62. On September 10, 2018, the Plaintiff obtained emails among Defendants Blair,

Curnutt, Claggett, Adcock, and Ramirez indicating that Major Williams had contacted them and

persuaded them to terminate the Plaintiff from ALERRT, purportedly because the Plaintiff

lacked credibility and integrity. Major Williams did so in retaliation for the Plaintiff's EEO and

EEOC complaints. Defendants Blair, Curnutt, Claggett, Adcock, and Ramirez had reason to

know that Major Williams was retaliating, but they terminated the Plaintiff under false pretenses

and without any attempt to hear both sides of the story.

63. As of late 2017, the Plaintiff had spent a year investigating the case of a sixteen-year-

old Wood County girl whose relatives had been trading her for sex in exchange for drugs since

she was eleven years old. Lt. Mulch, Agent Brock and Agent Brian Perry met with Wood

County Sheriff Tom Castloo, Deputy Chief Bobby Sanders, District Attorney Jim Wheeler, and

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District Attorney’s Investigator Jerry Hirsch around that time and told the Wood County officials

that the Plaintiff lacked credibility and integrity. Lt. Mulch, Agent Brock, and Agent Perry were

acting at the direction of Major Williams and Captain Milanovich. As a result of their false

statements about the Plaintiff, the Wood County DA refused to prosecute the cases. The Office

of Attorney General later filed charges against some of the sex traffickers, but not all.

64. Around the same time in late 2017, Lt. Mulch and Agent Brock met with Assistant

U.S. Attorney Jonathan Ross in Texarkana for the purpose of smearing the Plaintiff's reputation.

The Plaintiff had been working a year-long undercover investigation into a large

methamphetamine distribution network in Camp County and surrounding areas, but Lt. Mulch

and Agent Brock told Mr. Ross that the Plaintiff lacked integrity and credibility. As a result, Mr.

Ross initially declined to prosecute the case. Lt. Mulch and Agent Brock were acting at the

direction of Major Williams and Captain Milanovich.

65. On December 22, 2017, the Plaintiff’s last day at work, Captain Milanovich and Lt.

Mulch gave the Plaintiff his last performance evaluation, and they omitted and altered facts in

order to portray the Plaintiff in a bad light. In other words, even after DPS had sustained the

Plaintiff's misconduct allegations against Captain Milanovich, and even after Lt. Mulch got in

trouble for failing to report the religious harassment, DPS commanders nonetheless allowed the

two men to write a false and defamatory performance evaluation of the Plaintiff. Meanwhile, the

DPS administrative assistant in Mt. Pleasant, Sharon Walker, was told by Captain Milanovich

that he had no intention of notifying DPS headquarters about the Plaintiff's retirement. Normally,

DPS sends out a department-wide announcement when a trooper or agent retires. Ms. Walker

notified headquarters on her own initiative.

66. After the Plaintiff retired, Captain Milanovich, Lt. Mulch and Agent Brock began

retaliating against Ms. Walker because she had cooperated with the OIG investigation and told

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the truth about how they treated the Plaintiff. In February of 2018, she received her first negative

performance evalulation of her 20 years with DPS, and she was subjected baseless and bad-faith

criticism from the three men. She retired two months later because of the stress of working

under Captain Milanovich, Lt. Mulch, and Agent Brock.

67. Although DPS investigators confirmed that Captain Milanovich had stolen state

property, retaliated against the Plaintiff, and engaged in religious discrimination, senior

commanders nonetheless permitted him to retire quietly in August of 2018 as if nothing had ever

happened. Lt. Mulch and Agent Brock, meanwhile, suffered no adverse personnel action

whatsoever.

68. The Plaintiff incorporates by reference the ORIGINAL PETITION from Billy Spears v.

Texas Department of Public Safety, et al., Case No. 1:15-cv-511-RP (W.D. Tex.)(hereinafter

“Spears I”), which is attached as Appendix 1. The Plaintiff further incorporates by reference the

FIRST AMENDED COMPLAINT from Billy Spears v. Steven McCraw, et al., Case No. 1:17-cv-1105-

RP (W.D. Tex.)(hereinafter “Spears II”), which is attached as Appendix 2. Defendants McCraw

and Commissioners Mach, Flores, Leon, Pulliam, and Watson have adopted an unwritten policy

that permits DPS commanders to retaliate against lower-ranking DPS personnel according to

their whims and prejudices. DPS has a strong “good old boy” culture that allows DPS

commanders to play favorites and create double standards as they see fit. Notwithstanding

repeated notice of such unlawful practices – both in litigation and media reports – the Defendants

named in this paragraph have demonstrated deliberate indifference.

69. A fatal traffic wreck involving Texas Ranger David Armstrong of Dallas is a good

example of the double standards inside DPS. On February 2, 2017, Ranger Armstrong was

returning from a special operations shift on the Mexican border when he crashed his DPS vehicle

into a pickup truck, ejecting both the driver and the passenger. After several weeks, a DPS

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Highway Patrol accident reconstruction team was able to recover the vehicle’s computer to

confirm his speed at the time of the crash. He was driving 84 miles per hour on Highway 281 in

Premont, where the posted speed limit was 45 miles per hour. Ranger Armstrong fractured his

hip, and his DPS vehicle burned down to the metal. The passenger of the other vehicle, 30-year-

old JD Kristopher Trevino of Premont, died of his injuries five days after the wreck. Even though

the accident occurred in Premont city limits, and even though accidents in municipalities are

normally investigated by city police, DPS handled the investigation so it could cover up what

happened. Among other things, Ranger Armstrong was violating a DPS safety rule at the time of

the accident. That rule mandates that officers working on the border take a six-hour rest period

before driving home, and the rule had been in effect for more than a year at the time of the

accident. Ranger Armstrong had repeatedly violated the rule – a fact known to his supervisors –

and he was violating it again when he was driving through Premont at 10:15 p.m. Although

most drivers would have been charged with manslaughter, criminally negligent homicide, or at

least reckless driving, Ranger Armstrong was never charged with anything, nor was he

disciplined. Instead, the entire incident was covered up by senior DPS commanders, and Ranger

Armstrong is now leading a high-profile investigation into a police shooting in Dallas.

70. In January of 2018, DPS supervisors discovered that Ranger Brent Davis was

involved in an ongoing sexual relationship with Faezeh Pour Mogahdam Horaney of Longview.

That might not be noteworthy but for the fact that Ranger Davis was also leading the

investigation into the May 30, 2016 murder of Mrs. Horaney's husband, Ronald “Ron” Horaney,

a well-known businessman who was gunned down in front of his house. According to rumors

within DPS, Ranger Davis helped Mrs. Horaney recover proceeds from her husband's life

insurance policy. Either way, Ranger Davis badly compromised the murder investigation,

rendering his testimony worthless at trial and raising questions about whether he diverted

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investigative attention away from his mistress. Notwithstanding his gross misconduct and

potential criminal activity, he was allowed to keep working for DPS as a law enforcement

officer. Senior DPS commanders quietly demoted him from Ranger to trooper, but they told him

that he would be eligible to re-apply for appointment as a Ranger within one year, i.e., as soon as

January of 2019.

71. On February 27, 2017, Ranger Michael Smith was involved in a road rage incident in

Round Rock, Texas. After another driver “flipped him off,” Ranger Smith initiated a traffic stop

and drew his gun on the other driver. Ranger Smith had no probable cause for the traffic stop,

and the driver was released without a citation after Round Rock police responded to the scene.

Body camera video from Round Rock officers showed that Ranger Smith lied to the local police

while trying to explain what happened. The incident was kept quiet until July 14, 2017, when

Austin television station KXAN broadcast the body camera video and reported inconsistencies in

Ranger Smith's story. At the time of the broadcast, DPS issued a written statement that

“corrective action” had been taken against Ranger Smith, but he was not demoted at that time,

much less terminated (like most other officers would have been). In November of 2018, Ranger

Smith was finally demoted from ranger to trooper, most likely because of subsequent

misconduct.

72. In 2011, Senior Ranger Captain Antonio “Tony”” Leal had a traffic accident while

driving drunk. According to the other driver, Leal flashed his badge and offered to pay her if she

kept quiet about the wreck. No charges were filed against Leal, and he was allowed to retire as if

nothing had happened. Another ranger was a passenger in Leal's car at the time of the accident,

and apparently he was drunk as well. The other ranger kept quiet about what happened, and he is

now one of the top DPS officials in Austin.

73. Around 2011, Agent Brock wrecked a DPS vehicle in Titus County while driving

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drunk, but he did not report the incident until the following day, much less the fact that he had

been driving drunk. Captain Milanovich learned about the drunk driving incident but helped

cover it up, and he prevented Brock from being terminated. In the years before and after, Agent

Brock often called DPS personnel while they were on duty and asked them to drive him home

from a bar because he was drunk. On other occasions, Agent Brock showed up for work with

enough alcohol on his breath to be noticed by co-workers and even a local justice of the peace.

Prior to the drunk-driving accident, Agent Brock was disciplined for lying about a part-time, off-

duty job. He was required by DPS policy to report the job, but he failed to do so and then lied

about the job when he was questioned. These facts were reported to OIG investigators and were

well known to Agent Brock's supervisors for many years, yet he was never disciplined for his

alcohol-related misconduct.

74. Spears I and Spears II (see Paragraph 68 above) further illustrate the corruption and

cronyism in DPS. In Spears I, Defendant McCraw first retaliated against Trooper Spears for (1)

reporting another officer's misconduct and (2) allowing himself to be photographed with Snoop

Dogg. After Spears I made international headlines, senior DPS personnel retaliated further by

fabricating a record in Trooper Spears's employee file in an attempt to terminate him. In October

of 2017, Upshur County District Attorney Billy Byrd investigated the forgery and referred it to

the Office of the Attorney General (“OAG”) for further investigation and/or prosecution. OAG

quickly referred the matter back to DPS, even though (1) OAG had its own investigators on staff;

(2) DPS had an obvious conflict of interest; and (3) the case easily could have been referred to

the district attorney's offices in Travis County or Dallas County. So why was the case referred

back to DPS? Because OAG also wanted to cover up the forgery. As of November 21, 2017,

Trooper Spears had filed Spears II, wherein he asserted civil claims against the DPS personnel

who tried to frame him and fire him. Those DPS personnel were being defended in federal court

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by none other than OAG. Meanwhile, DPS referred the forgery investigation to the Texas

Rangers Division, which closed the case without ever interviewing any of the witnesses. The

Rangers Division then referred the matter to OIG, even though OIG investigates only violations

of DPS policies and procedures, and even though forgery is obviously a crime.

75. Rather than interview the corroborating witnesses, OIG immediately tried to

interview Trooper Spears. Once again, OIG investigators were doing damage control for DPS

commanders, namely by trying to find out what DPS would be facing in Spears II. Trooper

Spears's attorney objected to an OIG interview about matters pertaining to his ongoing civil

litigation, and OIG relented. Unfortunately, OIG investigators made no effort to interview other

witnesses until October of 2018, when Trooper Spears's attorney publicly called for a special

prosecutor. Even now, OIG personnel are trying to whitewash the forgery. On or about

November 12, 2018, an investigator for the Dallas County District Attorney's Office informally

questioned DPS witnesses about the forgery. One week later, OIG Lt. Rick Lopez called one of

those witnesses and asked her what the DA investigator had called about. In other words, Lt.

Lopez was more concerned about damage control than investigating the forgery.

CLAIMS

42 U.S.C. § 1983

76. All Defendants are sued in their individual capacities only, and all prior paragraphs

are incorporated herein by reference.

77. The Plaintiff brings claims for damages against all Defendants under 42 U.S.C.

§1983 because they (1) retaliated against him for exercising his rights as guaranteed by the First

Amendment to the U.S. Constitution; (2) conspired with other Defendants who retaliated; or (3)

failed to supervise those who retaliated.

78. The Plaintiff brings claims for damages and injunctive relief against all Defendants

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under 42 U.S.C. §1983 because they (1) denied him the equal protection of the laws as

guaranteed by the Fourteenth Amendment to the U.S. Constitution; (2) conspired with other

Defendants who denied his equal protection rights; or (3) failed to supervise those who denied

his equal protection rights.

79. The Plaintiff brings claims for damages and injunctive relief against all Defendants

under 42 U.S.C. §1983 because they (1) denied him due process of law as guaranteed by the

Fourteenth Amendment to the U.S. Constitution; (2) conspired with other Defendants who

denied him due process; or (3) failed to supervise those who denied him due process.

State Law Claims

80. All Defendants are sued in their individual capacities only, and all prior paragraphs

are incorporated herein by reference.

81. The Plaintiff brings claims against Defendant Williams for tortious interference with

business relations, tortious interference with contract, business disparagement, and defamation

insofar as he interfered with the Plaintiff's ALERRT teaching job. The Plaintiff further asserts

these claims against the other Defendants insofar as they were part of the larger civil conspiracy

to retaliate against the Plaintiff.

82. The Plaintiff brings claims against Defendant Williams, Captain Milanovich, Lt.

Mulch, Agent Brock, and Agent Perry for defamation and business disparagement insofar as they

spread malicious falsehoods about his character to prosecutors and other law enforcement

agencies. The Plaintiff further asserts these claims against the other Defendants insofar as they

were part of the larger civil conspiracy to retaliate against the Plaintiff. The Plaintiff still teaches

law enforcement training classes, and the Defendants harmed his chances of getting teaching

jobs because of the damage to his reputation.

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REQUEST FOR RELIEF

83. The Plaintiff respectfully prays that upon a final hearing of this case, judgment be

entered for him against the Defendants, for damages in an amount within the jurisdictional limits

of the Court; together with pre-judgment interest at the maximum rate allowed by law; post-

judgment interest at the legal rate; back pay; costs of court; attorney fees; and such other and

further relief to which the Plaintiff may be entitled at law or in equity.

THE PLAINTIFF DEMANDS A JURY TRIAL.

Respectfully submitted,

/s/ Ty Clevenger Ty ClevengerTexas Bar No. 24034380P.O. Box 20753Brooklyn, New York 11202-0753(979) 985-5289(979) 530-9523 (fax)[email protected]

Attorney for Plaintiff Darren Lubbe

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in the united states district court...

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